Cell phone users ‘have no legitimate expectation of privacy’ – judge

A federal judge recently ruled that if someone has their cell phone turned on, their location data does not deserve protection under the Fourth Amendment, meaning law enforcement can track individuals without a search warrant.

New York magistrate judge Gary Brown decided in favor of Drug
Enforcement Administration (DEA) agents who were seeking his
approval over a warrant on a doctor who they suspected was being
paid for issuing thousands of prescriptions. The warrant would have
compelled the physician’s phone company to provide real-time
tracking data from his cell.

Brown, certainly to the delight of police, issued a 30-page
brief outlining his opinion that, by carrying a cell phone, someone
is essentially waiving their Fourth Amendment right to due
process.

“Given the ubiquity and celebrity of geolocation
technologies, an individual has no legitimate expectation of
privacy in the prospective of a cellular telephone where that
individual has failed to protect his privacy by taking the simple
expedient of powering it off,” Brown wrote.

“As to control by the user, all of the known tracking
technologies may be defeated by merely turning off the phone.
Indeed – excluding apathy or inattention – the only reason that
users leave cell phones turned on is so that the device can be
located to receive calls. Conversely, individuals who do not want
to be disturbed by unwanted telephone calls at a particular time or
place simply turn their phones off, knowing that they cannot be
located.”

He goes on to suggest that because there are smartphone
applications available that allow users to locate people in their
area with similar interests, cell phone customers should not expect
their inherent right to privacy to be observed.

“Given the notoriety surrounding the disclosure of
geolocation data to retailers purveying soap powder and blue jeans
to mall shoppers, the police searching for David Pogue’s iPhone
and, most alarmingly, the creators and users of the Girls Around
You app, cell phone users cannot realistically entertain the notion
that such information would (or should) be withheld from federal
law enforcement agents searching for a fugitive.”

The American Civil Liberties Union (ACLU) has long been a voice
for the American people against governmental overreach and
technological surveillance. Chris Soghoian, a principal
technologist and senior policy analyst at the ACLU, wrote that
Brown’s opinion was “ridiculous.”

“There is a big difference between location information
you knowingly share with a select group of friends (or, in fact,
the world) and information collected about you without your
knowledge or consent,” he wrote.

Exactly how common this practice is throughout the law
enforcement community is unclear but it has widely been reported
that a Michigan police force tried to gain information about every
single cell phone within the proximity of a labor
protest.

Congressional leaders are currently considering two laws that
would address how freely police are able to bug citizens. During an
April hearing on Capitol Hill one detective told Senators that
warrantless geolocation tracking is “essential to obtain in the
early stages of investigations when probable cause has not yet been
established.”

That attitude, and the wide potential for abuse this kind of law
creates, has the ACLU alarmed.

“Someone might be happy to share their location with a few
friends by ‘checking in’ using Foursquare while at a music
festival, but not want law enforcement to access that same
information,” Soghoian continued. “And, they would still
reasonably expect that their location a week later at an Alcoholics
Anonymous meeting or abortion clinic should remain private. Sharing
location data isn’t and shouldn’t be all or nothing.”